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Lecture 2 August 26, 2009
Overview Assignment Friday: . 38(1) – p.Filartiga Case .Re-cap from Monday’s class .Statute of International Court of Justice.McCann v.195 Today .Start on Sources of International Law . Art.Finish McCann Case . UK .
edu/~halvorss/ .COM CULearn http://socsci.com NOTE: AOL.colorado.CONTACT INFO + class website • • • • • • • • • Professor Halvorssen: Office: Ketchum 121A Office hours: MWF 1:00-2:00pm CALL ME ANYTIME (except night before exam) Phone: (303) 492-7871(departmental office). (303) 499-2368 (home office) E-mail: amhalvorss@aol.
.Introduction INTL LAW • A) Administrative issues (update) • B) Introduction INTL LAW (review) • 1) The nature of intl law • 2) Who are the subjects of intl law? • 3) What is sovereignty? • 4) Is it really law? 5) The lack of a centralized • a) legislative • b) adjudicative • c) enforcement power • C) Then we’ll start the McCann case.
we talk about „States acting as such‟ • Intl law is a separate legal system in contrast to law of the individual state which is referred to as the internal/ domestic/ municipal law of the US. Spain. Japan.Intl law . and individuals in some contexts • State – nations state . not NGOs).definitions • INTL law – Public International Law: body of law/ ground rules that regulate the relations betw States. • Subjects of intl law – states. and to a certain extent individuals. . Modern definition includes intl organizations (referring intergovernmental organizations. intl organizations.
internal selfgoverning .Intl law – definitions -2 • SOVEREIGN STATE – Autonomous . paragraph 1 • What is a state? 4 criteria . the right to inviolability of territory and citizens and other entitlements. . that does or is capable of carrying on foreign/diplomatic relations with other states. • United Nations recognizes the sovereignty of the state – UN CHARTER Art. territory. 2. government. States are sovereign also in the sense that they are only subject to their own will – only bound by agreements they are a party to.population.supreme – independent of all alien dominion. Right to equality and respect.
no intl executive – no centralized enforcement agency • .no intl legislature/ law-making authority • .no effective intl judiciary – not compulsory and binding jurisdiction to settle disputes (only states that give consent) .Is international law really law? • Or just moral rules? Can there be a body of law governing sovereign states. • .
Political bodies like the Security Council and the General Assembly also apply the law. yet it is made • . their actions and resolutions interpret and develop the law • .Is intl law really law? -2 • Henkin: . arbitration and ad hoc tribunals.no judiciary as effective as municipal courts. yet the UN has some enforcement powers and there is „horizontal enforcement‟ in the reactions of other nations.no intl executive to enforce intl law.Almost all nations observe almost all principles of intl law and almost all of their obligations almost all of the time • .intl law difficult to make. • What matters is whether intl law is reflected in the policies of nations and in relations between nations.inadequacies of the judicial system are in some ways supplemented by other bodies. there is the ICJ whose judgments are respected • . .
earlier cases (precedents in U. The Court (International Court of Justice. Arbitration Court.) • 2. statutes. Issues . general principles.Questions presented (general principle of law put in the form of a question). customary international law. Facts .S.relevant and significant facts • 4. etc. • 3.1 • 1.BRIEFING A CASE . etc. List separately and learn to discuss each issue separately and clearly when discussing the reasoning of the Court and the decision of the Court. Sources of Law: Treaties. Supreme Ct. . law). U.S.
Use outline form. in class. Significance of the case (minor point) Unlike most traditional law books. Reasoning of the court‟s opinion – the legal arguments the court used to justify applying the rule 7. numbering each section as listed in the order of the outline above. .judgment pronounced by the court in settlement of a controversy submitted to it. Decision .legal principle applied to the facts of the case – Holding . if the case is briefed properly. 6.2 • • • • • • • 5. It is important that you spend sufficient time on each case and grasp its context. unless you are instructed to do so. Two pages should be sufficient. Holding and Decision .BRIEFING A CASE . as this is the method by which you will understand the concepts of law. where concurring and dissenting opinions are given at the end of the case. in international law discussing these opinions is not necessary. in advance.rule of law necessary for the decision (judgment) of the court.
• Their families submitted to their complaints to the European Commission of Human Rights – Commission reported that there was no violation of Article 2. 1988 shot in the back possibly after being warned to stop. . etc. Gibraltar Constitution. judicial review turned down – no reasonable prospects of success. UK gov‟t issued certificates stating that proceedings were excluded because Crown was not liable for actions taken outside of UK and Northern Ireland. UK High Court actions were struck off • The did find a explosive device in a car rented by Farrell.McCann v. 3.McCann and Farrell crossed the border March 6.As early as beginning of 1988 UK and Spain knew of IRA plans for a terrorist attach on Gibraltar – during the changing of the guard ceremony – by detonating a car bomb brought over the border • Suspects McCann. Court: WHICH COURT? The European Court of Human Rights located in Strasbourg. • . Farrell and Savage were witness by Detective Constable Viagas in a car park March 6. Sources of Law: WHAT ARE THE DIFFERENT SOURCES? European Convention on Human Rights. 1988 and identified by the Security Services then. the soldiers thinking they were about to detonate bombs – intention to kill to stop threat of detonating bombs • Inquest jury returned a verdict that the killings were lawful. but were not arrested • McCann and Farrell were killed by British soldiers on March 6. United Kingdom 1. Relevant facts: • . Northern Ireland. France 2. • Families of McCann and Farrell were dissatisfied commenced action in High Court..
Reasoning – Decision not to prevent the suspects from traveling to Gibraltar. Failure of authorities to make sufficient allowances for possibility of intelligence assessment being erroneous.2? 5. Issue – (1) Do the facts of the case disclose a breach by the UK of its obligations under Art. 2? (2) Was the anti-terrorist operation as a whole controlled and organized in a manner which respected the requirements of Art. (1) Yes (2)No. it did not fall under the exception to Art. . United Kingdom • • • • 4.McCann v. Automatic recourse to lethal force. 2 Right to Life – depravation of life by use of force no more than absolutely necessary in defense of persons from unlawful violence 6. Holding and decision.
trying to prevent another period of terrible human rights abuses in Europe.McCann v. then it‟s ripe for an intl court. proving to their citizens and the world that they honor human rights. • We looked at provisions of the European Convention . as during WWII. contributing to regional integration.Is treaty law more like a contract or like an intl statute? Answer: A bit of both. • Why would the UK consent to either the rules themselves or the jurisdiction of the European Ct of Human Rights? Why comply with a ruling of the Ct. .? Answer: Keeping other states honest. Significance . United Kingdom • 7.Any reference to an intl court – first the municipal ct. – here the UK gets a chance to right the wrong – the domestic legal remedies are to be “exhausted” first. if they believe there is no violation of law.
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